Statement of ICC Prosecutor Fatou Bensouda to the UNSC on the Situation in Libya, pursuant to UNSCR 1970

Thank you for giving me the floor. Allow me at the outset to congratulate you on presiding over the Presidency of this august body for the month of November, and to take this opportunity to equally thank you for your continued support of the work of my Office and, the ICC more broadly, both as Permanent Representative of Italy to the United Nations here in New York as well as Vice-President of the Assembly of States Parties.

Mr President, Your Excellencies,

I welcome the opportunity to up-date the Council on my Office’s activities in Libya since I last reported to you in May of this year.

I observe with regret that the security situation in Libya remains a matter of great concern. Indeed, as this Council has stated repeatedly, the volatile situation in Libya remains a threat to international peace and security.

Libya continues to confront many challenges: the proliferation of armed groups; continued – though lessened – activity of the Islamic State of Iraq and the Levant or “ISIL”; the humanitarian crisis created by Libya being the key transit point for hundreds of thousands of migrants, and the on-going struggle for political power in many parts of the country.

At the same time, and notwithstanding these challenges, it is important to recognise the efforts of numerous actors, first and foremost, the Libyans themselves, as well as Libya’s neighbours, international partners, and regional organisations, who are all working to achieve peace and stability in Libya through an inclusive dialogue.

As underlined recently by the Special Representative of the Secretary-General of the United Nations, Mr Ghassan Salamé, and the United Nations High Commissioner for Human Rights, Mr Zeid Ra’ad Al Hussein, the re-establishment of the rule of law, the protection of human rights and the need to combat impunity must form part of the process that will lead to a sustainable political settlement in Libya.

Justice is an important component of sustainable peace. Courts with competent jurisdiction over crimes committed in Libya, including the International Criminal Court, have a crucial role to play. Accountability for serious crimes and full respect for the rule of law are key factors which must be encouraged and supported if Libya is to achieve peace, security and stability.

We are striving to do our part. Since my last report before the Council six months ago, my Office has made substantial progress in the investigations of alleged crimes committed in Libya.

In that regard, let me now turn to the most recent warrant of arrest issued by the Court in the Libya situation.

You will recall that in my May 2017-statement and report to this Council, I highlighted reports of serious crimes allegedly being committed in the context of the conflict between forces of the Libyan National Army or “LNA” and the Benghazi Revolutionaries Shura Council, in and around Benghazi. Specifically, I noted reports of serious crimes, including summary executions allegedly committed following the LNA takeover of the Ganfouda neighbourhood of Benghazi on or around the 18th of March earlier this year.

I called on all parties to the conflict to refrain from carrying out serious violations of human rights and international humanitarian law. I reminded all parties to the conflict of the provisions of the Rome Statute relating to the responsibility of commanders and superiors to prevent or repress the commission of crimes by their forces, and to submit any such crimes for investigation and prosecution.

I also noted that my Office was closely monitoring this situation.

In the following months, my Office continued to receive credible information of grave crimes allegedly perpetrated in Libya, including in Benghazi.

Based on the evidence of these alleged crimes committed in and around Benghazi, on 1 August 2017, I applied for a warrant of arrest for Major Mahmoud Mustafa Busayf al-Werfalli. On 15 August 2017, Pre-Trial Chamber I of the Court granted the application and issued a warrant for his arrest.

The suspect, Mr al-Werfalli, is a commander in the Al-Saiqa Brigade, a Benghazi-based Special Forces unit that has been active in the LNA’s Operation Dignity since May 2014.

Based on the evidence collected, we allege that Mr al-Werfalli is responsible for the war crime of murder in relation to six unlawful executions that allegedly took place in or around Benghazi between March and July 2017, as well as another execution that allegedly took place in or before June 2016. These executions were filmed and posted to social media sites.

Mr al-Werfalli is alleged to have ordered or personally committed the seven executions that resulted in the murder of 33 people in cold blood.

My Office follows the evidence and applies the law, independently and impartially, as set by the Rome Statute, irrespective of the affiliation of the perpetrators or the victims.

Since the issuance of the warrant, there have been public reports of a possible arrest and an internal investigation by the LNA into Mr al-Werfalli’s actions. The LNA has officially stated that it is investigating.

However, my Office has also received reports indicating that Mr al-Werfalli is at large, remains a commander with the Al-Saiqa Brigade, and may have been involved in further killings. I am investigating these reports.

Mr President, Your Excellencies,

Let me stress that irrespective of any reported domestic investigation that may be underway, Libya remains under a legal obligation arising from Resolution 1970 to immediately arrest and surrender Mr al-Werfalli to the ICC. He must be transferred to the Court to stand trial.

I therefore urge General Khalifa Haftar, commander of the LNA, which has publicly expressed gratitude for the work of the Court in relation to Mr al-Werfalli’s case, to demonstrate, by concrete actions, respect for international justice by ensuring Mr al-Werfalli’s immediate transfer to the Libyan authorities so that he may be surrendered to the Court without delay.

Mr President, Your Excellencies,

The Council will also recall that on 24 April 2017, the ICC made public a warrant of arrest against Mr Al-Tuhamy Mohamed Khaled, former head of the Libyan Internal Security Agency. Mr Al-Tuhamy is alleged to have committed crimes against humanity and war crimes in relation to the events of 2011.

My Office continues to investigate Mr Al-Tuhamy and others associated with the 2011 events. The Office is also engaged in identifying and, where appropriate, sharing information relating to both Mr Al-Tuhamy and Saif Al-Islam Gaddafi’s current whereabouts. We continue to devise and implement strategies to facilitate the execution of the outstanding warrants of arrest.

In relation to Mr Gaddafi, I appreciate the support expressed by members of this Council, encouraging the Libyan authorities to comply with their outstanding obligation to surrender him to the Court. Those who allegedly bear responsibility for crimes under the Rome Statute must be brought to justice.

My Office continues to request States Parties, non-States Parties and organisations to assist in securing the arrest of persons subject to an ICC warrant. In this context, we have engaged in a spirit of good faith and demonstrated utmost sensitivity while providing specific information to enable cooperation. We count on the support of States we have engaged in that process to assist the Office with the arrest and surrender of ICC suspects.

In this regard, I wish to recall the wording of Resolution 1970, and again encourage all States and regional and international organisations to take concrete action to support my Office’s efforts so that Mr Al-Tuhamy and Mr Gaddafi can be surrendered to the Court and face justice in relation to alleged crimes committed during the 2011 events.

In relation to Mr Abdullah Al-Senussi, my Office continues to monitor the Libyan proceedings in relation to his pending appeal before the Libyan Supreme Court.

Mr President, Your Excellencies,

My Office’s assessment since our last report to the Council indicates that the situation remains dire in Libya. The security situation remains unstable with violent clashes occurring between various factions across Libya. Reports indicate widespread violations of human rights and international humanitarian law being perpetrated by different parties to the conflict. Often, the victims are civilians.

One major cause for concern is the continued internal displacement of persons in Libya, such as the Tawerghan. Despite the approval by the Presidential Council of the Government of National Accord in June of this year of an agreement between the Tawerghan and Misratan communities, there has reportedly been no progress towards fulfilling their return home.

I also note with grave concern reports of unlawful killings, including the execution of detained persons; kidnappings and forced disappearances; torture; prolonged detentions without trial or other legal process; and arbitrary detention, torture, rape, and other ill-treatment of migrants in official and unofficial detention centres.

As detailed in my latest report, events of particular concern during the reporting period include the attack on the LNA-held Brak Al Shati airbase on 18 May 2017, and recent clashes in the Sabratah region between the 48th Infantry Brigade (also known as the “Martyr Anas al-Dabashi armed group”) and the Operations Room to Combat the Islamic State. My Office also notes the continued activity of ISIL, including its claimed suicide attack on the Misrata courthouse on 4 October 2017.

My Office has also received information that the LNA has allegedly intensified restrictions on access to the city of Derna over recent months, in connection with fighting during the reporting period between the LNA and the Derna Mujahideen Shura Council. Restrictions reportedly include blocking medicine, medical treatment and petrol from entering the city.

The Office has received reports indicating that hundreds of Derna’s inhabitants have been arrested attempting to leave the city.

I join UN Special Representative, Mr Salamé in condemning recent airstrikes in a residential neighbourhood in Derna that appear to have resulted in the tragic deaths of civilians, including at least 12 children and women.

Finally, reports have also emerged that 36 male corpses were found in the town of al-Abyar, 50 kilometers east of Benghazi. This is also of grave concern. The bodies were reportedly handcuffed, showed signs of torture, and displayed bullet wounds to the head.

I remind each and every combatant engaged in fighting in Libya that my Office remains seized of the Situation in Libya, and if their actions amount to war crimes or crimes against humanity, they can be prosecuted.

These recent attacks and the reports of the finding of 36 corpses bearing signs of torture and execution, compel me, once again, to bring the provisions of the Rome Statute relating to the responsibility of commanders and other superiors to the attention of senior commanders and officials across Libya.

Persons acting as military commanders or as superiors can be criminally responsible for crimes under the Rome Statute committed by forces or subordinates under their effective command and control, or effective authority and control. In addition to their responsibility to protect civilians, they have an obligation to prevent or repress the commission of crimes by their forces, and to submit any such crimes for investigation and prosecution.

Let me be clear: if serious crimes under the Rome Statute continue to be committed in Libya, I will not hesitate to bring new applications for warrants of arrest. These crimes must stop. Those taking part in hostilities must do so within the framework of the law and with full respect for international humanitarian law.

Mr President, Your Excellencies,

I come back to the issue of crimes against migrants as it is a serious matter that continues to preoccupy me and my Office. I have instructed my Office to continue its inquiries into the alleged crimes against migrants transiting through Libya. Depending on the precise facts and circumstances that might be established in the course of a full investigation, such crimes may fall within the jurisdiction of the Court. This issue must be decided through a case by case analysis based on the relevant facts and an assessment of my Office’s jurisdiction. Such work will be strictly within our mandate as set by the Rome Statute.

In conformity with Goal 9 of my Office’s latest Strategic Plan, we will also work with Libya, other States and organisations on this issue where appropriate, and where we think we can be of assistance to address crimes perpetrated against migrants.

Where possible, our collaborative efforts enhance coordination of investigative and prosecutorial strategies that are aimed at closing the impunity gap not only for Rome Statute crimes, but also for other transnational and organised criminal activity falling outside of my mandate. These other crimes significantly contribute to continuing insecurity and violence in Libya today.

Mr President, Your Excellencies,

I now turn to some of the unfortunately recurring challenges facing my Office.

My Office’s investigations into alleged crimes under the Rome Statute committed in Libya are hampered by the on-going insecurity in the country, which still prevents my teams from operating within Libya.

Insufficient resources also continue to be a major problem. The Office receives different forms of support, from members of the Council and States Parties for its work. However, the modest financial resources which must be spread across all situations currently under investigation by my Office must be increased to ensure we have adequate means to achieve our mandated mission.

Failure to execute arrest warrants issued by the Court also remains a major challenge. Members of this Council, as well as other States, including non-States Parties, have the responsibility to ensure timely arrest and surrender of all Libyan suspects.

Despite these challenges, the announcement of the two arrest warrants in the last eight months – one for crimes committed during 2011 and the other for crimes perpetrated more recently – should clearly demonstrate that my Office continues to be fully engaged in Libya and is determined to contribute to achieving real progress towards a culture of accountability for crimes under the Rome Statute committed in Libya.

The progress we have made and our achievements to date are a result of the commitment and expertise of my staff, as well as the strong and collaborative relationships we have developed with key actors. My Office continues to receive vital support from a number of States, including The Netherlands, Tunisia, Italy, and the United Kingdom, as well as international organisations and other actors, such as UNSMIL and Interpol. The exemplary efforts of these States and organisations deserve recognition. More of the same is required with others joining to contribute.

In addition, the Libyan Prosecutor-General’s office remains a strong and valued partner in our investigation activities. And, as always, I remain grateful to citizens of Libya and all individuals and organisations who are committed to the goals of the ICC.

I am acutely aware that peace and stability in Libya will require action, support and commitment from different actors. Ensuring justice for victims of serious crimes perpetrated in Libya, and bringing to account those who have committed or ordered atrocities, remain critical factors for sustainable peace in a country that has been plagued by conflict for far too long.

Libya will remain a priority for my Office in 2018. I, along with my team, are determined to fulfil the responsibility entrusted to my Office by the Rome Statute vis-à-vis Libya, following the Council’s referral pursuant to Resolution 1970.

My Office will continue to do its part. As we do, we count on the critical support of this Council, UN member states, and States Parties to the Rome Statute.

Suspects against whom ICC warrants of arrest have been issued must be arrested and transferred to the Court to stand trial.

We have a collective responsibility to cultivate a culture of accountability for Rome Statute crimes in Libya and to deter the commission of future crimes.

Continued failure to do so is to deny victims of grave crimes committed in Libya, the justice they so rightly deserve. Inaction will also embolden those already committing crimes and would-be perpetrators by signalling that impunity will reign; that they are beyond the reach of the law. This, we cannot allow.